In June 2022, a new provision was introduced in the Employment Protection Act (1982:80) that clarifies the rules regarding parallel employment.
The provision on parallel employment was introduced as a result of the EU adopting Directive 2019/1152 on transparent and predictable working conditions within the EU (the Working Conditions Directive). The Working Conditions Directive includes certain minimum requirements for employment.
According to § 6 of the Employment Protection Act, an employer may not prohibit an employee from having another employment during their employment. The regulation does not apply to prohibitions on self-employed positions, such as board positions.
The second paragraph of the section specifies three exceptions to the main rule: if the other employment hinders the work, competes with the employer's business in a way that could cause harm, or in some other way could harm the employer's business.
An employment is considered to hinder the work if it is extensive, involves certain hours, or in any other way prevents the employee from performing their work satisfactorily.
An employment is considered to compete with the employer's business in a way that can cause harm if there is a risk of harm. The risk must be assessed objectively and must typically be able to lead to harm to the type of business conducted by the employer. It does not have to be a case of actual harm.
When assessing whether the employment could harm the employer's business in some other way, the risk of harm should be concrete enough to typically lead to harm in the employer's business. According to the preparatory works, case law from the Labour Court (Arbetsdomstolen) on breaches of the duty of loyalty should provide some guidance as to when an employer may prohibit an employee from taking another employment (Prop. 2021/22:161 p. 196). An assessment must be made in each individual case, taking into account factors such as the employee's tasks, the type of business, and the employee's position. The higher the position of the employee, the higher the requirements that can be placed on the acceptability of parallel employment.
The final paragraph of the section states that an employer may not disadvantage an employee because the employee has another employment during their employment.
Please note that there is special regulation regarding side jobs in the Act (1994) on Public Employment (LOA) within the public sector.
It is possible to deviate from § 6 of the Employment Protection Act through collective agreements. A prerequisite for this is that the collective agreement has been concluded or approved by a central employee organization and that the overall protection for employees as laid down in the Working Conditions Directive is maintained. Examples of deviations in collective agreements are formulations that mean the employer cannot prohibit a part-time employee from taking another employment up to full-time.
As a starting point, an employee is free to have a secondary employment as long as it does not hinder the employee from performing their work or risk causing harm to the employer. However, this assumes that the non-competition clause is reasonable.
We at Alex AB (publ.) are experts in labour law. Whether you are an employer or an employee, feel free to contact us with questions and advice regarding side jobs, duty of loyalty, or any other employment law matters. Book an initial 30-minute conversation with us at alexapp.se!
